Quote of the Day
Justice Frankfurter warned 80 years ago that the Supreme Court was going down a bad path by getting into the business of ranking constitutional rights, protecting some at the expense of others, and today his dissent illuminates what has gone very wrong with our current Supreme Court. In a string of cases decided by an unchecked conservative super-majority, the court has established a tiering of constitutional rights, elevating rights to religious liberty (for some), free speech, and guns over and above other fundamental rights such as equality, public health and security, and bodily autonomy.
Katherine Franke
James L. Dohr Professor of Law at Columbia University and the founder and faculty director of the Law, Rights, and Religion Project.
July 18, 2023
We’ve Entered a New Era of Tiered Constitutional Rights
Is Franke a visitor from an alternate universe and is working from a different U.S. Constitution? In my universe and reading my copy of the U.S. constitution there is no mention of “fundamental rights such as equality, public health and security, and bodily autonomy*.”
I would attribute the addition of these new rights to ignorance or poor schooling. But Franke claims she is a Professor of Law at Columbia University. If true, I find it hare to imagine she is so ignorant or poorly schooled that she did not have an accurate copy of the U.S. Constitution, the Bill of Rights, and been required to read them on multiple occasions. Hence the I am forced to conclude there must be an alternate explanation.
One could claim this is a deliberate lie intended to deceive the masses. But the lie is so obvious one could not expect it to accomplish, in the best case, a cause for laughter at her expense.
Hence, my leading hypothesis to explain this outrageous misrepresentation of the words and meaning of the constitution is that she is delusional and/or is a visitor from an alternate dimension.
I also find it quite telling there is no means to leave comments on her opinion piece.
* The Fourth Amendment reference to “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” appears to be limited to “searches and seizers” and it would be difficult to stretch it to mean “bodily autonomy.”
Arguably the right to bodily autonomy is reasonably contained with the 9th (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people) and 10th Amendments (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people). After all, it could be argued that most of the other rights stem from that foundational idea.
What gets wild is the discussion with a person who demands abortion rights right up to (and in some cases beyond) the moment of birth under the “my body my choice” rubric, while ALSO demanding that everyone be coerced into being jabbed with an experimental, dangerous, and ineffective gene therapy, while ALSO demanding they be protected from the harms caused by others by preventing them from keeping and bearing effective tools of self-defense. It’s like “principles? WHAT principles?” They just have positions, not ideas or principles. I’d love them try to create a Venn Diagram of that logic….
A two-dimensional Venn diagram cannot represent the hyper-dimensional manifold necessary to encode the mathematical topology of their political positions. There’s a lot of the use of i involved.
Could it just be a case of; “The constitution says what I say it says.” (God complex.) Coupled with an over-active communist imagination?
It wouldn’t be the first time this sort of synaptic pattern went hyperactive.
As when “bodily autonomy” turns into; Honest your honor, I thought you only needed one consenting adult?
The only Venn diagram that comes to mind is a giant circle of hypocrisy, with all the different political-isms in it. Communism, socialism, fascism, liberalism, progressivism, to name a few.
And unfortunately they ain’t in a different universe. They’re here, and They Live, among us.
Except for the last new right* she mentions, “bodily autonomy”, the other rights are rights one would expect a herd of cattle to have, or rather conditions the rancher would want his cattle to experience right up until they become hamburger.
*”Equality, public health and security, and bodily autonomy.”
I would attribute the addition of these new rights to ignorance or poor schooling. But Franke claims she is a Professor of Law at Columbia University.
Which just shows — for the nth time — that education (or credentialing) does not equate to intelligence.
As to her screed: In a string of cases decided by an unchecked conservative super-majority, the court has established a tiering of constitutional rights, elevating rights to religious liberty (for some), free speech, and guns over and above other fundamental rights such as equality, public health and security, and bodily autonomy.
She doesn’t see (or more likely, refuses to see) that the rights affirmed by those religious liberty, free speech, and “guns” cases apply to everyone, which is just about as pro-“equality” as one can get. She also doesn’t see (or refuses to see) how many of these decisions’ relevant portions are decided unanimously (example: even the dissents in Heller acknowledged that the right to keep and bear arms is an individual right; they disagreed 5-4 on the scope of the right, but on the individual nature it was 9-0).
Does she really believe that decision affirming a Christian web designer’s right to refuse to design a site that violates her religious beliefs, cannot be cited by Islamic, Jewish, or atheist web designers to refuse to design sites that violate theirs? Or that striking down a gun ban law doesn’t affirm the right of each individual person to keep and bear arms, whether they lived under the gun ban law or not, and whether they choose to own guns or not?
How do any of these decisions affect “bodily autonomy”, other than affirming one’s right to protect their own body as they see fit?
The reality is, all our rights are interrelated, including the ones she claims are being relegated to a lower “tier”. You cannot profess your religious beliefs in public without free speech, you cannot insist on bodily autonomy without self-defense (sometimes armed), and when some people are “allowed” to do these things but others aren’t, that is the opposite of equality.
I would agree with previous commenters that “bodily autonomy” rightly falls within the purview of the 9th Amendment.
But we each individually have the right to “public health”?
That doesn’t even make sense.
What she’s saying is that, in her view, the government should have the right to dictate the behavior of individuals under the rationalization of “public health”, which is the exact opposite of an individual right and flies in the face of the aforementioned “bodily autonomy”.
But I suppose at this stage in the game, contradictory principles from leftists shouldn’t be a surprise at all.
If it weren’t for double standards, the Left would have no standards at all.
And I agree: “public health” is not an individual right, and cannot be. It is the ability for the government and your neighbors to dictate what you can and cannot do, on the assumption that anything you do affects them.
You want to get a vaccine shot and wear a N95 mask for your own health? Fine. Under the “individual rights” framework, you don’t get to require me to get a shot and wear a mask for YOUR health. But under the “public health” framework, you do — again, not for MY health, but for YOURS.
In a sane world, the two would be completely incompatible with each other.
How do the rights she cites that require the performance by someone else NOT fall afoul of the Thirteenth Amendment? The Doctor or other person may be paid, but he or she is still compelled to act. On occasion slaves in the American South were paid for their services to others, and if they shared that income with their owner, that is another point perilously close to people’s relationship today to the IRS.
I think you will find the answer to Ms. Franke’s viewpoints here.
http://hrlibrary.umn.edu/edumat/hreduseries/hereandnow/Part-5/8_udhr-abbr.htm
There appears to be 25 “Basic Human Right”
Article 1 Right to Equality
Article 2 Freedom from Discrimination
Article 3 Right to Life, Liberty, Personal Security
Article 4 Freedom from Slavery
Article 5 Freedom from Torture and Degrading Treatment
Article 6 Right to Recognition as a Person before the Law
Article 7 Right to Equality before the Law
Article 8 Right to Remedy by Competent Tribunal
Article 9 Freedom from Arbitrary Arrest and Exile
Article 10 Right to Fair Public Hearing
Article 11 Right to be Considered Innocent until Proven Guilty
Article 12 Freedom from Interference with Privacy, Family, Home and Correspondence
Article 13 Right to Free Movement in and out of the Country
Article 14 Right to Asylum in other Countries from Persecution
Article 15 Right to a Nationality and the Freedom to Change It
Article 16 Right to Marriage and Family
Article 17 Right to Own Property
Article 18 Freedom of Belief and Religion
Article 19 Freedom of Opinion and Information
Article 20 Right of Peaceful Assembly and Association
Article 21 Right to Participate in Government and in Free Elections
Article 22 Right to Social Security
Article 23 Right to Desirable Work and to Join Trade Unions
Article 24 Right to Rest and Leisure
Article 25 Right to Adequate Living Standard
Article 26 Right to Education
Article 27 Right to Participate in the Cultural Life of Community
Article 28 Right to a Social Order that Articulates this Document
Article 29 Community Duties Essential to Free and Full Development
Article 30 Freedom from State or Personal Interference in the above Rights
I’m waiting for Right to Cable Television to make the list.
RE: #10 and #11: I wonder if she supports “Red Flag” laws.
That aside, most of those are federal law already.
I do have an issue with “Article 2: Freedom from Discrimination”.
Discrimination based on what, exactly? Race, color, ethnicity, national origin, age, religion, creed, gender, gender identity, sexual orientation, and a few others are already protected classes under federal law.
However, “discrimination” happens anytime someone chooses one option over another, in ANY context. The Starbucks customer who orders a hot mocha instead of an iced caramel latte is discriminating based on their subjective tastes. In an employment context, as another example, applicants might be screened based on education, experience, training and qualifications, skills, physical ability (say, if heavy lifting is required), etc. Normally, this is perfectly fine and reasonable.
But are they the kind of discrimination that would be disallowed under #2: Freedom from Discrimination? Who can say?
That UN document is all very nice and entertaining, although the UN in fact doesn’t do any of that. But it doesn’t matter; it has no legal meaning in the USA. The Constitution is the Supreme Law, while UN pontification is just hot air.
When lib commie leftist claim that things like “fundamental rights such as equality, public health and security, and bodily autonomy” exist they know they are lying.
They do it because the left long ago embraced Joseph Goebbels admonition regarding lies. Tell them big, tell them often and eventually they become reality.
These leftists are NOT stupid. They are evil. They know that if they tell lies often enough long enough they can fool the masses into believing the lies are actually truth. And if they fool enough people for a long enough period they are correct…their lies DO become reality.